Man attempts new defence – driving
while BlackBerrying

When Joe Doe was arrested for drunk
driving after a police officer spotted him weaving across
Highway 401 near Toronto, he came up with a novel argument: the
BlackBerry defence.

Mr. Doe said "there probably was a good
chance" he was weaving across the freeway, but it wasn't because
he was impaired, it was because he was sending messages on his
BlackBerry. He used his knee to steady the steering wheel while
he sent and received messages on the device, according to
documents filed in court.

The case ended up before an Ontario
judge and Mr. Doe pressed his point. He argued that on Oct. 29,
2004, he was on his way home to Ajax, Ont., from an afternoon
golf game. He said he'd had one drink at the golf course and two
drinks later in a bar. He was arrested around midnight after a
police officer received a call about an erratic driver on
Highway 401. The officer followed Mr. Doe until he drove off the
freeway and pulled over on a side street.

Mr. Doe lost at trial in the Ontario
Court when the judge ruled that using a BlackBerry while driving
on the 401 constituted "sufficient evidence of the impairment of
the faculty of judgment needed to safely operate a motor
vehicle."

In addition to that, the judge ruled,
Mr. Doe's blood-alcohol level was over the legal limit, he
smelled of alcohol when he was arrested and he had a hard time
staying awake en route to the police station.

Mr. Doe wouldn't give up. He appealed,
arguing that "the judge concluded erroneously that because [Mr.
Doe] stated that he drove with a raised knee on the steering
wheel and was sending e-mails with his BlackBerry, that fact,
'standing alone,' showed impaired judgment."

To be convicted of impaired driving
under the Criminal Code, he argued, the ability to drive must be
impaired by alcohol or a drug, not a BlackBerry.

In a recent ruling on the appeal, Mr.
Justice Bryan Shaughnessy of the Ontario Superior Court threw
out Mr. Doe's argument. In his decision, Judge Shaughnessy said
the trial judge correctly based his ruling on the overall
evidence and not just on Mr. Doe's BlackBerry use.

"There was ample evidence to support an
impaired conviction including observations of [Mr. Doe's]
driving that included weaving within his lane and on one
occasion outside his lane; turning right on a red light without
stopping or signalling; a near miss in striking another vehicle
as he made his right-hand turn and continuing to operate his
vehicle for ½ kilometre while the police cruiser followed with
emergency lights and subsequently a siren activated," the judge
said.

It is not clear whether Mr. Doe plans to
take the case to the Ontario Court of Appeal. He declined
comment when reached at his home last night.

"There's always a new defence, someone
is always trying something," said Toronto lawyer Jonathan
Rosenthal, who specializes in impaired-driving cases. "I've
never heard of that one before."

When asked whether he'd heard about
people using BlackBerrys while driving on the 401, he paused and
replied, "Uh oh, you've never driven with me."